Temporary High-Skilled Migration

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Temporary High-Skilled Migration

November 1, 2002

Spotlight

By Maia Jachimowicz, Deborah Waller Meyers

In today's global economy, the mobility of high-skilled workers is a vital issue. Around 1.1 million people, many of them considered high-skilled, came to work in the United States in Fiscal Year 2000 — even more than the roughly 850,000 immigrants admitted for legal permanent residence. These workers arrived as part of the nearly 33.7 million temporary visitors (including tourists and students) admitted in FY2000.

This Spotlight provides an overview of the myriad visa categories under which high-skilled temporary workers qualify to enter the United States and includes recent data on these workers. For the purposes of this Spotlight, high-skilled temporary workers refers to any individual admitted on the basis of professional education, skills, equivalent experience, and/or specialized knowledge in a given field.

Up until 1885, the U.S. admitted temporary workers as contract laborers - many of whom were unskilled and sought work in railroad construction, shipping companies, fish canneries, or the California gold mines. When Congress passed the first national contract labor law of 1885, temporary workers were prohibited (in most cases) from entering the country. Only with the passage of the McCarren-Walter Act of 1952 did legislation reverse the prohibition against contract laborers entering the U.S.. This Act authorized the admission of temporary workers during labor shortages and began to differentiate between skilled and unskilled temporary workers by creating the H-1 specialty program. At that time, there was no formal definition for skilled workers, resulting in an extremely diverse category of professionals. Throughout the latter part of the 20th century, high-skilled individuals entered through a single broad category, the H-1 specialty occupation program, which included health occupations, entertainers, athletes, professors, and other professions requiring advanced knowledge in a particular field.

High-skilled temporary workers were defined and divided into distinct temporary work visa categories as part of the Immigration Act of 1990 (IMMACT).

This step was taken in response to concerns that H-1 non-immigrant workers (see above) lacked the skills originally envisioned for the visa-holders. Table 1 shows certain non-immigrant visa categories (high-skilled, skilled, and unskilled) that confer eligibility for temporary work.

** Data for business (B-1) and pleasure (B-2) not available separately due to temporary expiration of the Visa Waiver Program from May through October. For 1999 there were 4,592,540 B-1 admissions out of a total 28,696,911 B-1 and B-2 admissions.

In FY2000, the top 10 countries of origin for H-1B recipients were: India, China, Canada, the United Kingdom, Philippines, Taiwan, Japan, Korea, Pakistan, and Russia. Almost half of the H-1B petitions approved were granted to individuals born in India, eclipsing the eight percent from China, the second leading country of birth. Canadian TN workers composed the vast majority of the TN visa admissions, while United Kingdom nationals received the most L visa admissions. Approximately one third of all student visas originated from three countries: Japan, China, and Korea.

The H-1B visa encompasses people in specialty occupations such as scientific research, information technology, physical, and the social, and life sciences (Graph 1 shows the leading occupations of H-1B workers for FY 2001). The number of visa admissions has risen steadily over the past 11 years, from the initial annual cap of 65,000 H-1Bs imposed by the 1990 Immigration Act to the present 195,000 visa admissions. Changes in legislation have increased the number of H-1Bs permitted each year, particularly the American Competitiveness and Workforce Improvement Act of 1998 that increased admissions to 115,000 visas, and the American Competitiveness in the Twenty-First Century Act of 2000, which further raised the annual cap to 195,000 visas. Barring additional changes in legislation, the cap will return to 65,000 visa admissions in 2004. The number of H-1B temporary worker visas issued in FY2000 totaled 133,290.

Source: Report on Characteristics of Specialty Occupation Workers (H-1B): Fiscal Year 2001, Immigration and Naturalization Service, July 2002. See website

Certain individuals and organizations are exempt from the H-1B cap.

The total of 133,290 H-1B temporary worker visas issued in FY2000 excludes non-working visa "waivers," which permit individuals from qualified countries to enter the U.S. on a temporary basis without a non-immigrant visa. It also leaves out non-immigrant visas obtained in the United States through a non-immigrant visa "change of status," which occurs when an individual is granted a new and different non-immigrant visa within U.S. borders. In addition, applications from certain types of organizations are exempt from the annual H-1B visa cap and therefore are not included in the total number of visas issued. Organizations that qualify for exemptions include institutions of higher education and related or affiliated non-profit organizations; non-profit or governmental research organizations; any employer who is filing for a second extension of stay for an H-1B non-immigrant; primary or secondary education institutions; or any non-profit entity engaged in "established curriculum-related clinical training of students." Of over 257,000 H-1B applications filed and approved in FY2000, nearly 25,000 (approximately 9.5 percent) were exemption cases.

Each skilled-based category has unique prerequisites that must be met in order to apply for a temporary work visa. For instance, in order to perform services in a H-1B specialty occupation, a foreign professional must: 1) hold a baccalaureate or higher degree as required by the specialty occupation from an accredited U.S. college or university; 2) possess a foreign degree determined to be equivalent to a baccalaureate or higher degree as required by the specialty occupation from an accredited U.S. college or university; 3) have any required license or other official credential to practice the occupation (for example, architect, surveyor, physical therapist) in the state in which employment is sought; or 4) have, as determined by the INS, the equivalent of the degree required by the specialty occupation acquired through a combination of education, training, and/or experience. The eligibility requirements for intracompany transferees (L-1) require proof that the individual performs services in a managerial or executive capacity, for the same corporation or firm, or for the branch, subsidiary, or affiliate of the employer which employed him or her abroad for one continuous year within the three-year period immediately preceding the filing of the petition, in an executive, managerial, or specialized knowledge capacity.

All categories of high-skilled workers are entitled to bring their spouses and unmarried minor/dependent children with them. However, dependents may not be employed under their "dependent" visa classification. If dependents wish to work, they must apply separately for a temporary work visa. The 1986 Immigration Reform and Control Act (IRCA) protects individuals authorized to accept employment in the U.S. from discrimination in hiring or discharge on the basis of national origin and citizenship status. For all H-1B and H-2B temporary workers, the employer is responsible for return transportation costs for an employee terminated prior to the end of the approved period of employment. Under the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA), employers are required to grant H-1B workers the same fringe benefits as U.S. workers. Finally, H-1B workers are not required to demonstrate that they intend to return home. This legislation is seen as a benefit to many H-1Bs because workers who wish to stay permanently in the U.S. may seek permanent resident status while under this temporary worker status, and in fact, many do apply for permanent employment-based visas. All other categories of temporary workers, and all other temporary visitors in general, must demonstrate that they maintain residence abroad that they have no intention of abandoning in order to obtain a visa.

Employers wishing to hire high-skilled temporary workers must follow procedures designed to protect the interests of the domestic labor force.

As a general rule, employers may hire foreign workers when there are insufficient U.S. workers who are able, willing, qualified, and available to perform the job (this is not the situation for H-1, L and other limited cases). In addition, the employer must ensure that the employment of the foreign worker will not adversely affect the wages and working conditions of U.S. workers similarly employed. For H-1B workers, employers also must agree to pay these high-skilled individuals prevailing wages. Additionally, some companies are prohibited from hiring H-1B workers if they have laid off American workers doing similar work and they must certify that there is no strike or lockout. The American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) included new worker protections for H-1B dependent firms (those with more than 15 percent of their workforce comprised of H-1B workers).

On average, the process for obtaining a temporary visa generally involves three government agencies and can take anywhere from four to eight months. First, the employer files a labor condition application with the Department of Labor specifying the job, salary, and the length and site of employment. The role of the Immigration and Naturalization Service is to adjudicate the visa once this information has been processed. The INS determines whether the individual has the requisite education and work experience for the posted positions. If the INS approves the visa, the National Visa Center of the Department of State informs the beneficiary and carries out the remainder of the visa issuance process. It is the State Department that provides the individual with the visa necessary to travel to the United States, which will be checked by the INS at the port-of-entry. A visa does not guarantee entry into the United States; the INS has authority to deny admission at the port-of-entry to any applicant, even a visa-holder, who is inadmissible under the 1952 Immigration and Nationality Act (INA). In addition, the INS, not the State Department consular officer, determines the period for which the bearer of a temporary work visa is authorized to remain in the United States.

There is a required base fee of $130 for an employer to petition the INS for a temporary worker visa. An additional $1,000 Non-immigrant Petitioner fee is charged for certain H-1B petitions. Employers exempt from the annual cap for H-1B visa admissions also are exempt from the H-1B Non-immigrant Petitioner fee. There exists an optional $1,000 guaranteed 15-day processing fee for employers who wish to expedite the INS portion of the process. Finally, each applicant for a temporary worker visa must pay a non-refundable $45 application fee along with their form, and submit a valid passport, photograph, and the INS notice of approval to the National Visa Center. The processing fees for obtaining a visa can be anywhere between $175 and $2,175, depending on the type of visa issued and the time frame of issuance (the temporary worker is responsible only for the $45 visa application fee at the National Visa Center).

Of the three major immigrant-receiving countries (Australia, Canada, and the U.S.) the U.S. is unique in requiring most high-skilled workers to be sponsored by an employer.

In the U.S., an employer must sponsor a temporary worker, even high-skilled temporary workers (with two limited exceptions). In Canada and Australia, however, an individual can "self-sponsor," qualifying for a skilled work visa based on a predetermined point system. This method allows temporary workers to enter the country and then find a job. The point system integrates qualifications, job skills, employment experience, language skills, and other categories such as family members in the country and age at time of petition.

The TN visa has more requirements for Mexican professionals than for their Canadian counterparts.

Canadian professionals need documentation of proper credentials and an offer letter from a U.S. employer in order to obtain a TN visa. The application can be processed directly at any port-of-entry along the U.S.-Canadian border. However, Mexican professionals must have a visa from the U.S. consulate, documentation of credentials, and an offer letter from a U.S. employer. In addition, the prospective employer must file a labor condition application. In FY2000, the INS recorded 89,220 entries of Canadian TNs and 2,059 entries of Mexican TNs. Until January 2004, there will be a numerical ceiling of 5,500 admissions for Mexican professionals. A TN visa allows individuals to work in the country for one year at a time (with an unlimited number of extensions), while H-1B visas allow for three years of work (renewable once). For Mexican professionals, either visa requires similar paperwork, yet for Canadians it is much more time-consuming and costly to apply for an H-1B visa than a TN visa.

Temporary work visas range in initial duration of stay from less than one year to no more than five years. Some visas are not renewable, others last for a fixed amount of time, and still others are renewable indefinitely.

Non-agricultural workers (H-2B) have the shortest initial visa duration of up to one year. Individual athletes (P-1) have the longest initial stay duration of up to five years. Treaty traders and treaty investors (E-1/2) are allowed to extend their visas in two-year increments, and Canadian and Mexican Professionals (TN) can renew their visas in one-year increments, both for an unlimited number of renewals. The initial H-1B visa may be granted for a period of up to three years, with a one-time, three-year extension for a maximum of six years. After reaching the maximum allowed stay, the individual must live outside of the U.S. for one year before being allowed to obtain another H or L visa. However, the employee can prepare for a green card (permanent residence visa) while still in H-1B status. In addition, if the green card issuance is pending, the H-1B temporary worker may remain in the country in one-year increments until a final decision is reached regarding permanent residence. The H-1B visa is one of very few temporary worker categories where an adjustment to permanent status is permitted. Table 2 includes a detailed description of the visa duration for certain high-skilled temporary visa categories.

Many high-skilled temporary workers ultimately remain in the United States.

While data are lacking regarding the number of temporary workers who remain in the U.S. after their temporary visa has expired, research indicates that they often remain by adjusting to permanent status, marrying a citizen or immigrant, or illegally overstaying their visas. Approximately 80 percent of all immigrants admitted through employment-based preferences in FY2000 adjusted from a temporary visa category (this figure includes the principal visa-holders as well as dependents). People adjusting from a temporary visa category include tourists, students, spouses, refugees, parolees, and temporary workers. However, the latest studies indicate that the majority of all employment-based immigrant adjustments come from visa categories eligible for temporary work or their dependent spouses and children. The largest percentage of all immigrants who adjust to permanent resident status from a temporary worker status come from Asia, specifically China, India, and the Philippines. H-1B workers in particular often adjust to permanent legal status through employment-based visas. By one estimate, more than 50 percent of all H-1B workers will adjust to permanent employment-based status by 2010. H-1B workers are not required to demonstrate that they intend to return home, and therefore the law implicitly encourages a transition to permanent residency. Many immigration experts maintain that if the permanent employment-based visa system were able to process requests in a timely manner that met "real-time" business needs, employers would not choose to use the H-1B temporary worker visa system to initially bring in their high-skilled workers. This, they argue, would reduce the pressure on the H-1B cap and unnecessary paperwork, fees, and backlogs.